Terms and Conditions
1. Orders, deliveries, services
All of our deliveries and services are provided exclusively on the basis of the following General Terms and Conditions. General terms and conditions of the customer shall not be accepted and shall not form part of the contract. All offers made by SHE, also with regard to prices, are subject to change and non-binding. The exact respective scope of services shall be agreed upon in the written contracts between the parties. If the client requests additional services which have not been expressly agreed upon in the contract, this shall be deemed a new order. The contract shall be concluded by written declaration or execution by SHE. Delivery dates shall only bind SHE if they have been agreed in writing. They shall only entitle the customer to withdraw from the contract without setting a deadline if the adherence to the delivery date is expressly linked to the customer's interest in performance in the contract. Otherwise, the deadline is not binding. Any cancellation and/or modification of an order shall require the written consent of SHE. In case of cancellation and/or modification of an already binding order, SHE reserves the right to charge a reasonable handling fee. Shipment of the goods shall be ex warehouse SHE. For all deliveries, the price risk, the risk of accidental loss or accidental damage shall pass to the buyer as soon as the goods have been handed over to the carrier, even if carriage paid delivery has been agreed. If shipment is delayed due to circumstances for which the customer is responsible, this risk shall also pass to the customer upon notification of readiness for shipment to the customer. SHE shall be entitled to make partial deliveries at its discretion.
All prices are net prices and are quoted in USD. Service contract fees shall be in USD per month. Unless otherwise contractually agreed, the general price list of SHE valid at the time of conclusion of the contract shall apply. SHE reserves the right to change the respective price list with effect for the future and/or to replace it by a new one. SHE also reserves the right to modify individual service contents offered in the price list, to replace them with new ones or to discontinue offering them. SHE shall also be entitled to adjust the contractually agreed prices for recurring services with a notice period of three months to the end of the respective contract year. In case of a change of the price list and/or an adjustment of the contractually agreed price by SHE, the customer shall be entitled to terminate the respective contract with a notice period of two months in writing to the end of the contract year.
3. Invoicing and payment modalities
In the case of one-time services, regardless of the type, an invoice shall be issued by SHE after complete performance of the service. Payment shall be due immediately upon issuance of the invoice. Other services shall be invoiced quarterly on the first of each quarter and shall be due in advance. If the service does not start on the first of a quarter, 1/30 of the monthly price shall be charged pro rata for each day. If the customer makes use of services that are not included in the service description or in the contract, these are to be paid for additionally. In this respect, the respective valid price list of SHE shall apply. If the customer is more than 14 days in arrears with payments due, SHE may demand security and/or advance payment for all services still to be performed. SHE shall be entitled to charge default interest in the amount of 8 percentage points above the respective base interest rate of the Deutsche Bundesbank. The customer may only offset claims of SHE against undisputed or legally established claims and may only exercise a right of retention against such invoices.
4. Retention of title
SHE shall retain title to the goods delivered by it until full payment of the claim resulting from the respective delivery. If the delivery is software or any other work within the meaning of copyright law, the reservation shall also apply to the rights of use under copyright law. If the customer fails to meet his payment obligations, SHE shall be entitled to withdraw from the contract and to demand return of the delivered goods. The customer shall reimburse any additional costs. In addition, the customer shall compensate SHE for any benefits derived or culpably not derived as well as for any reduction in value. A right of retention can only be asserted against the claim for return if it is based on the same contractual relationship.
5. Provision of services by third parties
SHE shall be entitled to provide individual services also through third parties authorized by it. In this case, SHE shall be liable for the qualification and performance of services by the third party.
The client shall receive a non-exclusive right to use the delivered software after full payment of the invoices issued by SHE, unless otherwise contractually agreed. The copyright shall remain with SHE. The transfer of source codes shall not be owed by SHE, unless otherwise expressly stipulated in the contract.
7. Obligations of the customer
The customer may only use services provided by SHE for his own purposes within the scope of the license granted to him. The customer shall not be entitled to make services provided to him available to third parties - including group companies - for use. The customer shall ensure that the services provided by SHE are only used by him to the legally permissible extent and that any necessary official permits are obtained and official requirements are fulfilled. The customer shall indemnify SHE against all claims which may result from a breach of these obligations. The customer shall be responsible for ensuring that the recognized principles of data backup are observed. The customer shall immediately notify SHE of any disruptions occurring in connection with services provided by SHE. In particular, the customer shall inform SHE about the detailed circumstances of the occurrence of the disturbances, their manifestation and their effects. Insofar as SHE is obligated to eliminate the disturbance, the customer shall be obligated to reasonably assist SHE in analyzing the disturbance. If it turns out that the malfunction is not due to a circumstance for which SHE is responsible, the customer shall be obligated to reimburse SHE for the expenses incurred by SHE to eliminate the malfunction in accordance with the price list valid at the time.
The warranty is excluded insofar as SHE provides elements of the service contract. The right to extraordinary termination for good cause shall remain unaffected. Insofar as the contractual service includes the transfer of rights or the delivery of goods, SHE shall be entitled, to the exclusion of other rights of the customer, to remedy existing defects at its own discretion by rectification or replacement delivery. Multiple rectifications and replacements shall be permissible. If the rectification or replacement delivery is unjustifiably omitted or fails more than twice, the customer may, at his option, reduce the price or withdraw from the contract. The customer shall notify SHE of obvious defects within 14 days after receipt of the goods. After expiry of this period, SHE shall be entitled to refuse subsequent performance without compensation. The other obligations of the customer to give notice of defects according to § 377 HGB (German Commercial Code) shall remain unaffected. The warranty due to the assumption of a guarantee shall remain unaffected. The assumption of a guarantee must be in writing in order to be effective.
9. Exclusion of liability
Claims for damages by the customer, regardless of the legal basis, as well as claims for reimbursement of futile expenses are excluded. This exclusion of liability shall not apply in the event of negligent or intentional injury to life, limb or health or in the event of grossly negligent or intentional damage to other legal assets. The claim for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, excluding loss of profit, indirect damage or consequential damage, unless caused by intent or gross negligence or based on liability for injury to life, body or health. A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
All claims of the customer are subject to a limitation period of 12 months. In cases of gross negligence or wilful misconduct as well as in the case of claims under the Product Liability Act or due to injury to life, body or health, the statutory periods shall apply.
Unless otherwise stipulated in the contract, the place of performance shall be the registered office of SHE. SHE's place of business shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship; however, SHE shall be entitled to sue the customer also at the customer's principal place of business or branch office. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international private law.